FOIA Update: Hearings Scheduled on FOIA

January 1, 1981

FOIA Update Vol. II, No. 3 1981

Legislative Update

Hearings Scheduled on FOIA

A major thrust to amend the Freedom of Information Act (FOIA) is shaping up in the 97th Congress where several bills have already been introduced in the House and the Senate. In addition, FOIA oversight hearings are also planned.

The Constitution Subcommittee of the Senate Committee on the Judiciary will hold hearings July 15 and July 22 on S. 587, a comprehensive FOIA reform bill introduced by Senator Orrin Hatch. Senator Hatch chairs the subcommittee. Oversight hearings have been scheduled July 14-16 by Rep. Glenn English's Government Information and Individual Rights Subcommittee, House Committee on Government Operations.

Hatch's proposal would affect every agency dealing with FOIA by establishing a time/page schedule to replace the current 10 day time limit on FOIA requests. For example, under the Hatch proposal, an agency would have 60 days to process 200 pages.

Senator Hatch said in introducing the measure, "It is universally recognized that this time limit is arbitrary and unachievable with the best of intent. Government agencies today will in. most instances acknowledge the receipt of requests within 10 days. . . . In the very great majority of cases, however, requests take substantially more than 10 days to process. . . . ."

Other broad provisions of the Hatch bill are the following:

1. To establish a $10 basic FOIA fee to be charged to requesters. Duplication costs are also allowed.

2. To restrict to one per year, per agency, per subject, the number of FOIA requests that an individual can make.

Significant provisions for law enforcement agencies include putting a "hold" on law enforcement investigatory records for ten years. Law enforcement agencies further would be required to release criminal background information about prospective employees when prospective employers are in the national security, health care, hospital and/or drug areas.

In addition, the Hatch Act proposes three new exemptions related to information about law enforcement personnel, confidential law enforcement training manuals and handbooks, and materials obtained from foreign nationals and foreign corporations.

A second similar Hatch proposal, S. 586, would amend the Privacy Act of 1974. It has been referred to the Senate Committee on Governmental Affairs.

Also before the Constitution Subcommittee is expected to be Senator Robert Dole's reverse FOIA bill S. 1247 to provide a hearing for persons objecting to disclosure of business information and to preserve the confidentiality of business materials.

Two CIA Bills

A bill, S. 1235, exempting some Central Intelligence Agency records from FOIA, was introduced May 20 by Senator Alfonse D'Amato.

A second bill, S. 1273, amends section 6 of the CIA Act of 1949 to exempt CIA materials from the FOIA. Senator John Chafee is the sponsor.

Several pieces of legislation amending FOIA and the Privacy Act are pending on the House side.

Rep. English sponsors H.R. 2021 which provides for administrative and judicial procedures in reverse-FOIA cases.

Reverse FOIA cases are those in which the submitters of information ask courts to stop agencies from releasing information to requesters. Most reverse FOIA cases involve business interests.

The English bill would give an agency five days in which to notify submitters about access requests. Submitters would be allowed to comment on the releasability.

The bill also establishes judicial procedures for "reverse" cases. Venue is set in the United States District Court in the district in which the complainant resides or has a business, or where the agency records are situated, or in the District of Columbia. The complainant may be either the requester who asks that an agency be ordered to produce records or the submitter who asks that an agency be ordered to withhold records.

Rep. Ted Weiss of New York has introduced two bills relating to the Freedom of Information and Privacy Acts.

The Weiss bill, H.R. 939, would establish a procedure under which any citizen could bring a civil suit to recover records unlawfully removed from agency files.

H.R. 933 would amend the Privacy Act by adding telephone records as another exemption and by amending and limiting disclosure under the Communications Act of 1934.

Rep. Fortney "Pete" Stark of California has a bill, H.R. 3412, making it incumbent on agencies to release materials requested under FOIA unless disclosure would result in "demonstrable harm" to agency programs.

Another bill, H.R. 1668, introduced by Rep. C.W. Young of Florida, would extend public access to federal grantees' records. Instead of copying and duplicating materials, grantees would have to allow "reasonable" inspection by the public.